According to reports, the Obama administration is considering removing hundreds of families who came to the United States without authorization and have been ordered to leave by an immigration judge. The vast majority are said to have fled violence in Central America.

1. Obama Orders Review of K-1 Fiancé(e) Visa Program in the Wake of Terror Attack in California

President Barack Obama orders a review of the K-1 Fiancé(e) Visa Program following deadly assault in San Bernardino, California.

Review of K-1 Fiancé(e) Visa Program Ordered

The President has ordered a review of the K-1 fiancé(e) visa program in response to security concerns arising out of the mass shooting in San Bernardino, California that killed 14 people and injured many others on December 2, 2015. In that incident, a husband-and-wife team mounted an attack on a social services center during a holiday party. The husband was a U.S. Citizen, and his wife, a conditional green card holder, gained admission to the United States several years ago as a K-1 fiancée. K-1 visas are a type of nonimmigrant visa that permits foreign citizens to travel to the U.S. for the purposes of marrying their U.S. Citizen sponsor within 90 days of arrival. K-1 visa holders may then adjust status to permanent resident.

Recent reports have noted, among other things, that security checks on the wife, Tashfeen Malik, failed to uncover her support on social media of violent jihad and her statements expressing interest in participating. Social media is not routinely reviewed as part of Homeland Security checks. How such reviews of social media postings could occur, and whether they are appropriate, is reportedly a topic of debate within the U.S. government. In the meantime, President Obama has ordered the Departments of State and Homeland Security to review the program’s vetting processes.

Approximately 35,925 people entered the United States in fiscal year 2014 on fiancé(e) visas out of the more than 9 million total nonimmigrant visas issued during the same period. More information on FY 2014 nonimmigrant visas including a country-by-country breakdown is available here.

USCIS seeks public comments on a proposed rule published on December 31, 2015 that would change certain aspects of employment-based visa programs.

U.S. Citizenship and Immigration Services (USCIS) seeks public comments on a proposed rule published on December 31, 2015, “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” and also proposing regulatory amendments “to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents (LPRs).”

Among other things, USCIS said it proposes to amend its regulations to:

Clarify and improve longstanding agency policies and procedures implementing sections of the American Competitiveness in the Twenty-First Century Act (AC21) and the American Competitiveness and Workforce Improvement Act (ACWIA) related to certain foreign workers, which will enhance USCIS’s consistency in adjudication.

Better enable U.S. employers to employ and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions (I-140 petitions) while also providing stability and job flexibility to these workers. USCIS said the proposed rule will increase the ability of such workers to further their careers by accepting promotions, making position changes with current employers, changing employers, and pursuing other employment opportunities.

Improve job portability for certain beneficiaries of approved I-140 petitions by limiting the grounds for automatic revocation of petition approval.

Clarify when individuals may keep their priority date to use when applying for adjustment of status to lawful permanent residence, including when USCIS has revoked the approval of their approved I-140 petitions because the employer withdrew the petition or because the employer’s business shut down.

Allow certain highly-skilled individuals in the United States in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status to apply for one year of unrestricted employment authorization if they:

Are the beneficiaries of an approved I-140 petition;

Remain unable to adjust status due to visa unavailability; and

Can demonstrate that compelling circumstances exist that justify issuing an employment authorization document.

Such employment authorization may only be renewed in limited circumstances.

Clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, extensions of status, determining cap exemptions and counting workers under the H-1B visa cap, H-1B portability, licensure requirements, and protections for whistleblowers.

Establish a one-time grace period during an authorized validity period of up to 60 days for certain high-skilled nonimmigrant workers whenever their employment ends so that they may more readily pursue new employment and an extension of their nonimmigrant status.

Comments are due by February 29, 2016 and, pending that process, the rule will be scheduled to take effect on the date indicated in a final rule. A helpful summary of the rule is available here. Instructions for comment are available here.

3. BALCA Holds Institutions of Higher Education Need Not Include Other Types of Entities in Wage Surveys

The Department of Labor’s Board of Alien Labor Certification Appeals rules in favor of employer regarding wage surveys of institutions of higher education

In Matter of University of Michigan, 2015-PWD-00006 (Nov. 18, 2015), the Department of Labor’s Board of Alien Labor Certification Appeals (BALCA) ruled in favor of an employer, the University of Michigan, which argued that its wage survey of institutions of higher education was sufficient in determining the prevailing wage for a Senior Associate Regulatory Analyst. The Center Director (CD) had challenged the University, insisting that other types of entities must be included in the employer’s wage survey. The University responded by successfully arguing, among other things, that it had no obligation to provide such a survey.

The regulation in question, 20 CFR § 656.40(e), is based on the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), which states: “In computing the prevailing wage for…an employee of an institution of higher education, or an affiliated or related nonprofit entity, a nonprofit research organization, or a governmental research organization, the prevailing wage level takes into account the wage levels of employees only at such institutions and organizations in the area of intended employment.”

BALCA held in its decision that an ACWIA wage for an institution of higher education may sample only other institutions of higher education (as opposed to sampling each type of ACWIA entity). “The CD’s insistence that the Employer provide a survey that sampled each type of ACWIA entity is inconsistent with the Department’s interpretation of the regulation and therefore constitutes an abuse of discretion.” BALCA overruled the CD and remanded the case for further processing consistent with its order.

The combined omnibus spending bill that Congress passed on December 18, 2015 includes several immigration measures of note. First, the supplemental fees for L-1 and H-1B petitions are increasing for companies that employ 50 or more employees in the United States and have more than 50 percent of their U.S. workforce in H-1B, L-1A, or L-1B nonimmigrant status. Specifically, the previously expired fees for L-1 petitions will increase from $2,250 to $4,500, and the fees for H-1B petitions will increase from $2,000 to $4,000. These supplemental fees must be paid on both initial and extension petitions.

The bill also extends four immigration programs through September 30, 2016, without substantive changes, including: the EB-5 Immigrant Investor Program, the E-Verify program, the religious worker visa program, and the Conrad State 30 waiver program for certain foreign doctors on J-1 visas.

Also included in the law was a prohibition against use of the Visa Waiver Program (VWP) by foreign nationals who have visited Syria or Iraq at any time on or after March 1, 2011. The new law also excludes from the VWP individuals who are nationals of Iraq, Syria, Iran, or Sudan, and requires that these individuals obtain visas in order to enter the U.S. The omnibus spending law notably exempts those performing military service in the armed forces of a VWP country or those carrying out official duties in a full-time capacity in the employment of a VWP country government. In addition, the U.S. government may waive exclusion from the VWP program if it would be in the law enforcement or national security interests of the United States.

The new law also allows certain workers previously counted against the H-2B cap to return to the United States without being counted against the cap a second time.

According to reports, the Obama administration is considering removing hundreds of families who came to the United States without authorization and have been ordered to leave by an immigration judge. The vast majority are said to have fled violence in Central America.

Late last month, reports were released alleging the Obama administration is considering removing hundreds of families who came to the United States without authorization since early 2015, with the possible removals speculated to commence this month.

The reports of the possible removals, or “raids,” are providing fodder for controversy among the candidates for President. Republican frontrunner Donald Trump took credit for the possible deportations: “Wow, because of the pressure put on by me, ICE TO LAUNCH LARGE SCALE DEPORTATION RAIDS. It’s about time!” Democratic frontrunner Hillary Clinton’s campaign spokesperson said, “Hillary Clinton has real concerns about these reports, especially as families are coming together during this holiday season. She believes it is critical that everyone has a full and fair hearing, and that our country provides refuge to those that need it. And we should be guided by a spirit of humanity and generosity as we approach these issues.” Democratic candidate Bernie Sanders said, “I am very disturbed by reports that the government may commence raids to deport families who have fled here to escape violence in Central America. We need to take steps to protect children and families seeking refuge here, not cast them out.”

U.S. Immigration and Customs Enforcement recently released statistics showing a steep drop in removals in fiscal year (FY) 2015. In FY 2012, there were 409,849 removals; by FY 2015, the number had dropped to 235,413.

6. OSC Opines on Terminating U.S. Workers and Hiring Contract Workers

Answers from the Office of Special Counsel on questions pertaining to Protected Employees

On December 22, 2015, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), Civil Rights Division, U.S. Department of Justice, responded to a question posed by an individual about whether an employer may terminate U.S. workers and rely instead on contract workers with temporary work visas. The OSC also responded to a question by Bruce A. Morrison, Chairman of the Bethesda, Maryland-based Morrison Public Affairs Group, who asked whether a violation can be established where an employer replaces a protected employee (to include U.S. Citizens and nationals, refugees, asylees, and lawful permanent residents) with a non-protected employee provided by a third-party company, rather than by directly hiring a replacement from outside of the protected class.

Among other things, OSC noted that citizenship status discrimination occurs when protected individuals are denied or deprived employment because of their real or perceived immigration or citizenship status. U.S. citizens and nationals, refugees, asylees, and recent lawful permanent residents are protected from citizenship status discrimination under the Immigration and Nationality Act (INA), the OSC noted, adding that the INA grants OSC jurisdiction over citizenship status discrimination claims involving employers with four or more employees.

OSC explained that except in very narrow circumstances, an employer violates the antidiscrimination provision if it terminates workers or hires their replacements because of citizenship or immigration status. This is true, OSC said, regardless of whether the employer takes the discriminatory employment actions itself through direct hiring, or contracts as a joint employer with an outside agency to implement its discriminatory staffing plan. Whether an employer has violated the antidiscrimination provision through its use of contract workers will depend upon the facts of each case, OSC noted, including:

whether there is evidence of intentional discrimination in the selection of employees for discharge or rehire;

the circumstances surrounding the selection of the third-party staffing contractor; and

the extent to which the original employer could be considered a joint employer of the contract workers.

In addition, OSC pointed out that nothing prevents the filing of a charge against the contractor for potential citizenship status discrimination, nor anything to prevent OSC from independently investigating the contractor for potential discrimination if OSC receives information indicating a possible violation.

7. OSC, ICE Issue Joint Guidance for Employers Conducting I-9 Audits

Newly released guidance notes that employers may conduct an internal audit of I-9 forms to ensure ongoing compliance with the employer sanctions provision of the INA

In other news from OSC, the agency issued new guidance jointly with the U.S. Immigration and Customs Enforcement (ICE) on December 17, 2015, called “Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits.” The guidance notes that, although not required by law, an employer may conduct an internal audit of I-9 forms to ensure ongoing compliance with the employer sanctions provision of the INA. An employer may choose to review all or a sample of I-9 forms selected based on neutral and nondiscriminatory criteria. If a subset of I-9 forms is audited, “the employer should consider carefully how it chooses Forms I-9 to be audited to avoid discriminatory or retaliatory audits, or the perception of discriminatory or retaliatory audits.” Penalties for violations “may be imposed even if an internal audit has been performed.” The guidance further states that internal audits should not be conducted on the basis of an employee’s citizenship status or national origin, or in retaliation against any employee for any reason. An employer “should also consider whether the audit is or could be perceived to be discriminatory or retaliatory based on its timing, scope or selective nature.”

The guidance recommends a “transparent process” for interacting with employees during any internal audit. This includes informing employees in writing that the employer will conduct an internal audit of I-9 forms, explaining the scope and reason for the internal audit, and stating whether the internal audit is independent of or in response to a government directive. The guidance states that when a deficiency is discovered in an employee’s Form I-9, the employer should notify the affected employee, in private, of the specific deficiency. The employer should provide the employee with copies of his or her Form I-9, any accompanying documents, and any other documentation showing the alleged deficiency. If the employee is not proficient in English, the employer should communicate in the appropriate language where possible. The employer should also provide clear instructions to employees with questions or concerns related to the internal audit on how to seek additional information from the employer to resolve those questions or concerns.

An employer cannot correct errors or omissions in Section 1 of the I-9 form, only in Sections 2 or 3, the guidance notes. The employer should ask the employee to correct any errors in Section 1. The guidance states that the best way to correct such an error is to have the employee draw a line through the incorrect information, enter the correct or omitted information, and initial and date the corrected or omitted information. A preparer or translator can help by making the correction or helping the employee to make the correction.

The guidance recommends that before conducting an audit, an employer should consider the purpose and scope of the audit and how it will communicate information to employees, such as the reasons for the internal audit and what employees can expect from the process. An employer should consider the process it will have for fielding questions or concerns about the audit, how it will inform the employees of that process, how it will document its communications with employees, and how it will ensure consistent standards when addressing any I-9 deficiencies revealed by the audit, the guidance notes.

Among other things, the guidance also notes that an employer is not required to terminate employees who, as a result of the employer’s internal I-9 audit, disclose that they were previously not work-authorized, even though they are currently work-authorized. An employer may continue to employ the employee upon completion of a new I-9 noting the authorizing document(s), and should attach the new I-9 to the previously completed I-9 together with a signed and dated explanation, the guidance states.

The guidance also notes that an employer should not use the Social Security Number Verification Service (SSNVS) during an internal I-9 audit. The Social Security Administration (SSA) will verify Social Security numbers and names solely to ensure that the records of current or former employees are correct for the purpose of completing Internal Revenue Service (IRS) Form W-2 (Wage and Tax Statement). Additionally, any notification about a mismatch makes no statement about an employee’s immigration status. Rather, it simply indicates an error in either the employer’s records or SSA’s records “and should not be used as a basis to take adverse action against an employee. In other words, SSNVS is not intended to be used to verify employment authorization in connection with the Form I-9 process,” the guidance notes.

8. Klasko News

Upcoming Speaking Engagements

H. Ronald Klasko | Daniel B. Lundy | Rohit KapuriaWe are pleased to be a platinum-level sponsor of EB5 Investors Magazine’sThird Annual Las Vegas EB-5 Conference. The Conference will take place from January 15-16 at the Bellagio Hotel in Las Vegas, Nevada, featuring a Keynote Address from Congressman Jared Polis (D-CO) and the first ever migration agent training workshop.

Ron Klasko, Dan Lundy and Rohit Kapuria will present at the conference. Ron Klasko will conduct training for over 60 migration agents covering due diligence relating to economic studies, business plans, program compliance and regional centers. He will also provide a legislative update and discuss the importance of hiring a professional due diligence team. Ron will also be a panelist on a session entitled, “EB-5 Reform and Advocacy.” Dan Lundy will present on a panel entitled, “Project Document Review” on Friday, January 15, and Rohit Kapuria will be present on the panel “The Many Roles of a Regional Center” on Saturday, January 16. For more information, or to register for the event, visit the conference website.

As the only immigration law firm that is a Medallion Solutions Partner of NES Financial, we are pleased to announce our participation in all four 2016 NES Financial EB-5 Innovation Summit. Ron Klasko, Dan Lundy and Rohit Kapuria will represent the Klasko EB-5 Team at the Summit, which includes four seminars focused on legislation, compliance, SEC enforcement and EB-5 best practices. Klasko Compliance is the leading immigration law firm working with regional centers and developers in all aspects of EB-5 compliance, and we will share our perspectives on how best to develop systems today to meet the anticipated legislative requirements. For more information, including dates and locations of the seminar series, visit the Summit website.

H. Ronald KlaskoRon will speak at the 37th Annual AILA South Florida Immigration Law Update in Miami Beach, FL from February 4-5, 2016. Ron will be a panelist for the sessions “Strategies for Working around the H-1B Shortage,” “EB-5, Dead and Revived: What’s Left?” and “Mandamus and Declaratory Judgment: How, When and Why.”

On February 13, Ron will also speak at the Los Angeles County Bar Association Conference “EB-5 Reboot: New Rules, New Players, New Opportunities.” Ron will lead discussions entitled, “EB-5 Law vs. Lore” and “Nonimmigrant to EB-5.”

William A. StockBill Stock will attend and present at the 2016 AILA Midwinter Conference “Leading Edge Business and Removal Practice Issues” on January 22, 2016 in Paradise Island, Nassau, Bahamas. Bill will participate in the panel session “Hot Topics,” providing updates on late-breaking legislative issues that may impact business practice, as well as updates on executive action.

Bill will also speak at the 37th Annual AILA South Florida Immigration Law Update on February 4, 2016, both as a panelist on “Issues in L-1A, L-1B and EB1-3 Processing,” and as the moderator of the plenary session, “Overview of Recent Developments in Immigration Law.” More information on the event is available here.

Finally, Bill will present at the State Bar of Texas 14th Annual Course entitled “Advanced Immigration Law 2016,” taking place on February 5 in Houston, TX. Bill will be a panelist for the sessions, “Can We Find a Common Political Ground in Immigration?” and “Adjustment of Status vs. Consular Processing.”

Recent Publications

“Reauthorization of EB-5 Program Likely Bringing Restrictions,” an article co-authored by Bill Stock and Anu Nair, was published in The Legal Intelligencer on December 16, 2015. In this article, Anu and Bill discuss the history of EB-5 and the Regional Center Pilot Program including the enormous impact EB-5 investments have had on development projects in the local Philadelphia area. The article also addresses the importance of consistency and permanency in a program that has been the subject of ongoing debates in Congress that will likely result in new, more restrictive legislation in December 2016.